Indecent Act (Criminal Code)

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Date Retrieved:	2024-06-02
CLNP Page ID:	2287
Page Categories:	Criminal Law
Citation:	Indecent Act (Criminal Code), CLNP 2287, <>, retrieved on 2024-06-02
Editor:	Sharvey
Last Updated:	2023/10/18

Criminal Code R.S.C., 1985, c. C-46

173 (1) Everyone who wilfully does an indecent act in a public place in the presence of one or more persons, or in any place with intent to insult or offend any person,

(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than two years; or

(b) is guilty of an offence punishable on summary conviction.

(2) Every person who, in any place, for a sexual purpose, exposes his or her genital organs to a person who is under the age of 16 years

(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than two years and to a minimum punishment of imprisonment for a term of 90 days; or

(b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than six months and to a minimum punishment of imprisonment for a term of 30 days.

R. v. Jacob, 1996 CanLII 1119 (ON CA)

OSBORNE J.A. (AUSTIN J.A. concurring): -- I agree with Weiler J.A. that the appeal should be allowed. I do not, however, agree with her reasons for reaching that conclusion. In particular, I do not agree that to be an indecent act, as proscribed by s. 173(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46, the act must have a sexual context.

In my opinion, the community standard of tolerance test must be used to answer the question whether the appellant's topless stroll in downtown Guelph constituted an indecent act. If the community standard of tolerance test is correctly applied (and I agree with Weiler J.A. that it was not) I do not think that the appellant committed the offence with which she was charged. I reach that conclusion in the light of the evidence which establishes the general context of the appellant's actions, the trial judge's findings and significantly the absence of evidence that the appellant's choice of apparel caused any harm.

I agree with Weiler J.A. that if an act must have a sexual context to be an indecent act under s. 173(1)(a) and the act does not have a sexual context, there is no need to determine if the act exceeded the community standard of tolerance. In my opinion, the context of the appellant's acts (including any elements of moral turpitude) should be considered as part of the fabric of the community standard of tolerance, not as an element of the offence.

My colleague's sexual context requirement makes the community standard of tolerance test redundant in this case. I thus propose to first consider whether an act must have a sexual context to be an indecent act proscribed by s. 173(1)(a) of the Criminal Code. For purposes of discussion and analysis, I am prepared to assume that the appellant's conduct on July 19, 1991 had no sexual context.